27 February 2013 External T.I. 2013-0476541E5 - Eligible Dependant

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: 1. Clarification of the age limitation in paragraph 118(1)(b) of the Act.

Position: 1. Generally, children over the age of 18 do not qualify for the purposes of 118(1)(b).

Reasons: 1. The Act.

XXXXXXXXXX
2013-047654
Robert Dubis

February 27, 2013

Dear XXXXXXXXXX:

We are replying to your letter of October 29, 2012 regarding the claim for the amount for an eligible dependant on line 305 of in the Income Tax and Benefit Return.

The information in the General Income Tax and Benefit Guide reflects the legislation as contained in the Income Tax Act (Act). The requirements for claiming the amount for the eligible dependant are contained in paragraph 118(1)(b) of the Act. Generally, notwithstanding that you may support your child who is a full-time student and lives with you in your home, clause 118(1)(b)(ii)(D) of the Act restricts the claim to children who are under 18 years of age except where that child is dependent upon you by reason of mental or physical infirmity.

That age restriction has been in effect since paragraph 118(1)(b) was introduced in 1988 as part of the tax reform package that converted a number of tax exemptions and deductions into tax credits. Although you expressed some concern that the age limitation is contrary to the Canadian Charter of Rights and Freedoms (Charter), the Federal Court, Trial Division found in the Queen vs. Mercier, that clause 118(1)(b)(ii)(D) did not violate subsection 15(1) of the Charter, and even if it did, it was justified by section 1 of the Charter.

Since your child is a full-time student, we would like to note that a student may be able to transfer part or all of their tuition, education, and textbook amounts to a parent where the student is not required to use those amounts to reduce their own federal tax payable to zero. The maximum amount you can transfer in a year is $5,000, minus the amount the student uses, even if there is an unused tuition, education, and textbook amount remaining.

We trust that the information provided is helpful.

Yours truly,

Sharmini Ratnasingham
for Director
Business and Employment Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch